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TMI Blog2019 (12) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... irected against the order dated 27.10.2017 of this Tribunal whereby the appeal of the assessee was dismissed for non prosecution. Since there is a delay of 412 days in filing the present Miscellaneous Application, therefore, the question of maintainability of the Miscellaneous Application arises. 2. The ld. A/R of the assessee has submitted that the assessee has not received any notice of hearing issued by this Tribunal, therefore, there was no appearance on the date of hearing. He has further submitted that the appeal was not decided on merits, therefore, there is a mistake in the impugned order of the Tribunal which is required to be rectified by recalling the same and decided the appeal of the assessee on merits. The ld. A/R has further contended that since the assessee was not aware of the date of hearing as well as the order passed by the Tribunal, therefore, the present Miscellaneous application could not be filed within the period as prescribed under section 254(2) of the IT Act. In support of his contention he has relied upon the decision of this Tribunal dated 20th March, 2019 in case of Shri Narendra Kumar Chaturvedi vs. ITO in M.A. No. 97/JP/2018. Thus the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was never sincere in prosecution and appearing in the proceedings before the Tribunal. Thus the conduct of the assessee right from the proceedings before the AO till the proceedings before this Tribunal is negligent and very casual. Since there is a delay of 412 days in filing the present application and the assessee has taken the ground in the Miscellaneous Application that the assessee was not aware about the date of hearing as well as the order passed by the Tribunal, we do not accept this contention of the assessee due to the fact that when the appeal of the assessee was earlier dismissed and restored on the Miscellaneous Application of the assessee, then the assessee was required to be vigilant in prosecution of the appeal. Further, there is nothing on record that the impugned order of the Tribunal sent by the Registry was not received by the assessee. We have verified the record and found that the order of the Tribunal dated 27th October, 2017 was duly sent through Registered A/D and in the absence of any record to show that the said order was received back unserved, it cannot be accepted that the assessee has not received the order of the Tribunal. Therefore, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee beyond the period of 6 months from the end of the month in which the impugned order was passed. Thus, in the absence of any provision u/s 254(2) or any other provisions of the Income Tax Act to condone the delay in filing the miscellaneous application we do not find any substance in the plea of the assessee to condone the dely. The Coordinate Bench of this Tribunal has considered an identical issue of maintainability of the miscellaneous application filed beyond the period of limitation in case of ITO vs. Shri Ram Ratan Modi in MA No. 93/JP/2017 vide order dated 27.12.2017 as has in para 3 as under:- 3. We have considered the rival submissions as well as relevant material on record. We note that the present miscellaneous petition was filed by the Revenue for recalling of the order dated 18.12.2015 and therefore, as per un-amended provisions of Section 254(2) of the Act, the limitation period provided for rectification of the mistake was 4 years from the date of order. However, the provisions of Section 254(2) has been amended by the Finance Act, 2016 w.e.f. 01.06.2016 providing the limitation period for rectification of mistake as 6 months from the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: 80 [Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.]] (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal. Thus, by Virtue the amendment in the provisions of Section 254(2) of the Act w.e.f. 01.06.2016 the time period within which the mistake apparent from record can be rectified has been reduced from 4 years 6 months. There is no quarrel on the point that this amendment in Section 254(2) cannot be given effect retrospectively so as to take way of right of the parties to file the application of rectification. The Hon ble M.P. High Court in case of District Central Cooperative Bank Ltd. Vs. Union of India(supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent from record is provided under section 254(2) as under: 254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit 46. (1A) 48[***] (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: [Provided further that any application filed by the assessee in this subsection on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] 6. The time period wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uable right of pursuing the appeal before the Tribunal. But in the absence of any provision giving power or jurisdiction to this Tribunal to condone the delay in filing the petition for rectification of the mistake apparent from the record, the Tribunal has no option but to proceed strictly as per the provisions as provided in the statute. 7. We have no doubt in our mind that there is an apparent mistake in the order dated 04.01.2016 as the Tribunal has not decided the appeals of the assessee on merit but dismissed the same in limine for want of prosecution. However, the question of rectification of mistake cannot be entertained until and unless the Miscellaneous Petition filed by the assessee is found to be maintainable. The miscellaneous petition filed by the assessee is beyond the period of 6 months from 04.01.2016 and therefore the same is barred by limitation. In the absence of any provision to condone the delay under the Income-tax Act, it may be a case of omission in the provision of Act which cannot be supplied by us when there is no ambiguity in the provisions of section 254(2) of the Act. The Hon'ble Bombay High Court in the case of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Revenue filed a writ petition in the Gujarat High Court challenging the order dated September 5, 2001. The above challenge by the Revenue was turned down by the Gujarat High Court. The Revenue carried the matter in appeal to the apex court which also dismissed the appeal of the Revenue. The apex court observed that the Tribunal in its original order while dismissing the stock exchange (assessee's) appeal overlooked the binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these circumstances, the application would be an application for rectification of the order dated December 6, 2007, and would stand governed by section 254(2) of the Act. 17. In the facts of the present case there can be no denial that the order dated Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, no period of limitation shall be attracted at all. Therefore, in this case also the period of four years from the date of order sought to be rectified/recalled will apply as provided in section 254(2) of the Act. This is so even if it is assumed that the order dated December 6, 2006, is a void order. 19 We shall now answer the questions arising in this case as raised by us in paragraph 4 above as under : Question (a) : No. The Tribunal has no power in terms of rule 24 of the Tribunal Rules to dismiss an appeal before it for non-prosecution. Question (b) : The miscellaneous application for recall of an order falls under section 254(2) of the Act and not under section 254(1) of the Act. Question (c) : Does not arise in view of our response to query (b) above. 20. In view of the reasons given hereinabove, we find the Tribunal was correct in dismissing the miscellaneous application by its order dated April 10, 2013, as being beyond the period of four years as provided under section 254(2) of the Act. 21. Accordingly, the petition is dismissed with no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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